Oliver Smith's petition raises the question whether, while imprisoned by the State of New York as a second felony offender, he is entitled to a federal court hearing on serious charges that his first felony conviction in Virginia was obtained in violation of his constitutional rights, although he escaped and became a fugitive from Virginia justice shortly after conviction and Virginia will not listen to him until he is able to appear there.

The District Judge has granted a certificate of probable cause stating that his decision denying the petition without a hearing "involves a debatable question as to the exhaustion of State Court remedies" and thus we review his decision pursuant to 28 U.S.C.A. § 2253.

Although Smith was without counsel until he reached this court, he has sought continuously since 1950 to set aside his 1946 conviction in Virginia, as appears from his numerous petitions, from correspondence, and from the briefs. All of his charges are thus far virtually uncontradicted and at this point we must assume them to be true in order to determine whether, under the somewhat unusual circumstances of this case, they should be tested by a New York federal court while Smith is still imprisoned by the State of New York.

In January 1946 Oliver Smith, a negro, then 18 years old and of limited education, was arrested in Newport News, Virginia. On January 14 an indictment was returned in the Corporation Court of Newport News charging Oliver Smith, Robert Smith and Percy Lee Kemp with having robbed "by violence to his person," one Samuel Gregory of $166.18 at Newport News in May 1945, no exact date in May being specified in the indictment. Under Virginia law this was a capital offense. Virginia Code 1942, § 4405, now Virginia Code 1950, § 18-163.

In his petition Smith alleges that he was kidnapped by police officers and "held incommunicado for 38 days, during which time he was not permitted to see his family, friends or counsel, nor was he arraigned before a magistrate" and during this detention he "was by means of force, bodily harm and promises of immunity, tricked into a confession"; that the district attorney "withheld and suppressed the important fact that he had prosecuted one Charles Tabb for the very same alleged offense 8 months prior, and the said Charles Tabb was convicted"; that while Charles Tabb was pointed out by the accuser and identified, "petitioner was forced to plead guilty due to his forced confession, without ever seeing the person he is accused of having robbed."

On February 18, 1946 Smith pleaded guilty as did his two co-defendants and each was sentenced to 9 years in prison. Smith alleges that he then told Judge Herbert G. Smith that he had been forced to sign a confession and that he wanted to go to trial as he was not guilty; that Judge Smith stated that as Oliver Smith had signed a confession in police headquarters he was bound to plead in accordance therewith and denied him a jury trial. He further charges that he was threatened with the maximum punishment of death if he did not plead, although he does not state who made this threat. He alleges that his conviction was based solely on his confession and that if he had been granted a jury trial his confession would have proven useless and he would have been acquitted. Smith then sets forth the allegation which gives us most concern, namely: "That the petitioner was not represented by counsel or was he advised as to his rights to counsel by the court." In support of this serious charge he called to the attention of the District Court that the records of the Corporation Court nowhere show the name of any counsel. Indeed the record of the order entered on February 18, 1946, certified by the clerk of the court, in its pertinent part seems to support this claim:

"This day came the attorney prosecuting for the Commonwealth, and the prisoners, Oliver S. Smith, Robert Smith and Percy Lee Kemp (who were represented by counsel), were led to the bar in the custody of the jailor of this Court, and being arraigned, each pleaded guilty to said indictment, and upon advice of counsel, and with the consent of the attorney prosecuting for the Commonwealth, and the Court, waived trial herein by jury, and the Court proceeded to hear and determine this case without the intervention of a jury, and the evidence and arguments of counsel being fully heard, the Court doth find the said Oliver S. Smith, Robert Smith and Percy Lee Kemp each guilty as charged in said indictment, and doth fix and ascertain the punishment of each to be imprisonment in the public jail and penitentiary house of this Commonwealth for the term of nine (9) years each."

Further along the order gives Oliver Smith credit for one month and eight days of time spent in jail awaiting trial. The pro forma nature of the recital that Smith was "represented by counsel" and the assertions of the clerk of the Corporation Court in his correspondence with Smith that that court has no minutes or any records other than the indictment and the order on the guilty plea seems to us to raise a serious question as to the nature of "counsel," if any, which was afforded to Smith in answering this capital charge. Further credence is given to Smith's charges by the fact that the Corporation Court of Newport News has on at least one other occasion been found similarly remiss in protecting the rights of persons accused of serious crimes. Stonebreaker v. Smyth, 1948, 187 Va. 250, 46 S.E.2d 406. See also 4 Cir., 1947, 163 F.2d 498.

Ever since Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, our federal-state system has been charged with the responsibility of seeing to it that the indigent and the untutored are advised and represented by counsel in all cases and under any circumstances where the forfeit for guilt may be a life. To impose the penalties of law in such cases without the benefit of counsel is a deprivation of liberty without due process of law in violation of the Fourteenth Amendment to the Constitution.

Nor has Smith forfeited his right to complain of the Virginia proceedings by not having appealed from the Virginia conviction. If it be true that he had no counsel, certainly there was no one to tell him what he must do to preserve his rights. Williams v. Kaiser, 1945, 323 U.S. 471, 477, 65 S. Ct. 363, 89 L. Ed. 398; see Brown v. Allen, 1953, 344 U.S. 443, 485, 73 S. Ct. 397, 97 L. Ed. 469.

On June 26, 1946 Smith escaped, became a fugitive from justice and is next heard of in Kings County, New York, where he pleaded guilty to robbery in the third degree on April 30, 1947. Sentenced as a second felony offender under New York Penal Law, Mck.Consol. Laws, c. 40, § 1941 on May 7, 1947, Smith was first given five to twenty years which was later reduced to from five to fifteen years.*fn1 Had Smith been treated as a first offender the maximum sentence would have been ten years. New York Penal Law, § 2129.

In November 1950 Smith filed the first of four petitions for habeas corpus in the District Court for the Northern District of New York, the last petition which is now before us having been filed July 28, 1955. It is apparent from Judge Brennan's opinion denying the fourth application that prior to July 1955 Smith filed numerous petitions in the Virginia courts in an attempt to have his 1946 conviction set aside. Correspondence in the file shows that on August 3, 1951, October 12, 1953, and March 1, 1955 applications by Smith to the Corporation ...

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